An alternative charge in an indictment that the accused cut and stabbed a named person with a knife, "or other sharp instrument," renders the indictment bad on special demurrer.
The State contends that if there was error, it was harmless, and for that reason the case should be affirmed. This court is bound by an opinion of the Supreme Court even though it is not unanimous, and the ruling in the case of Henderson v. State, supra, with one judge dissenting, is absolutely controlling on the point that the overruling of the special demurrer was error. The principle of law ruled in the Henderson case seems to be supported by rulings in similar cases in the other States and by text writers. As to whether *Page 805 the overruling of the demurrer was reversible error, the Supreme Court, in Haley v. State, 124 Ga. 216, 217 (52 S.E. 159), wherein one Haley was tried "in the city court of Elberton on an accusation which charged him and others with the offense of a misdemeanor, for that on a day named they did `with force and arms unlawfully play and bet for money or other thing of value at a game of skin or other game played with cards,'" said: "The accusation was subject to the special demurrer on the ground that it stated the offense in the alternative. The accusation being demurrable, it could not be cured by the statement of the court that he would confine the State to proof to show that the game was `skin' and the thing bet was money." It will be noted that the Haley case proceeded to a verdict against the accused, and even though the court confined the State to evidence showing that the offense was committed by only one of the alternative methods charged in the accusation, yet the Supreme Court said that it was reversible error. It might be further noted that theHaley case cites the Henderson case.
The rules for determining whether the allegations of the indictment are sufficient to withstand a special demurrer are different from those which govern in determining whether the proof supports the allegations of a good indictment. In the former instance the rule is "that a demurrer raising special objections to an indictment should be strictly construed against the pleader [the State];" whereas, in the latter instance, in dealing with a question of evidence, latitude is allowed for drawing inferences and deductions from the evidence to support the State's case. Green v. State, 109 Ga. 536, 540 (35 S.E. 97); Hadaway v. Southern Ry. Co., 41 Ga. App. 669, 670 (154 S.E. 296); Watson v. State, 21 Ga. App. 637, 640 (94 S.E. 857). In the latter line of cases, where the indictment or accusation properly charges the commission of the crime in the conjunctive, or properly charges a single method of committing a crime, which hold that, where the proof shows that the instrument used to inflict the wound and that proved are substantially of the same character and capable of inflicting practically the same nature of injury, there is no variance. The question in these cases is whether the nature and character of the injury and the manner and means of inflicting it is proved practically and substantially, though not identically, to be the same as those *Page 806 alleged. This line of cases is not applicable to the Henderson and the Haley cases, where the indictment was held to be bad, in that the disjunctive method of expression was employed, and thus the latter line of cases is not authority contrary to theHenderson and the Haley cases. Sanders v. State, 86 Ga. 717,721 (2) (12 S.E. 1058); Grantham v. State, 89 Ga. 121 (14 S.E. 892).
The Henderson case and the Haley case, both decided by the Supreme Court, are controlling in the instant case, and the judge erred in overruling the special demurrer.
Judgment reversed. Gardner, J., concurs.